Conflict conundrum

The Hindustan Times

Conflict conundrum

Jagdeep S Chhokar
June 24, 2011

'Consultant', like 'professional', is an often used - and abused - word. Having functioned as a consultant in the area of organisation and management, I am conscious of the dilemma a consultant of the old school faces: should I make the client self-reliant thus working myself out of a job? Or should I do just enough to ensure a steady income? This is a classic conflict of interest situation. But does it work at the national level?

The society and polity in India are at crossroads today. Corruption has permeated the innards of society and the value system. Almost no one in the country seems unaffected by it. Penetration of such phenomena to this extent doesn't happen without acquiescence and active abetment by significant portions of society. Who has been responsible for it in India is less relevant than what - if anything - can be done about it. That brings us to the national conflict of interest.

Two recent phenomena illustrate this. The first is the current flavour of the month, the lokpal; the second is a perennial favourite, State funding of elections. Under our Constitution, both these need to be voted on in Parliament.

Holding the Parliament in the highest possible esteem and with no intention to compromise its dignity as the highest democratic institution in the country, one has to admit that its performance, or of the honourable members who comprise it, has not really covered it in glory of late. Without casting any aspersion on the institution as a whole, one can't wish away the fact that almost 30% (162 of 543) members have criminal cases pending against them in which charges have been framed by the court of law and the punishment for which is two or more years of imprisonment. This number has increased from 156 in the 2004 Lok Sabha.

With the number of crorepatis in the Lok Sabha having increased from 128 to 315 from 2004 to 2009, when almost half of India's population lives on s Rs 20 or less per day, and with almost 78% members of the 2009 Lok Sabha having had more votes cast against them than for them, what can be said about the 'representativeness' of the elected representatives? But what does this have to do with the conflict of interest?

Lots actually. It is these honourable members who will vote on whether there should be a lokpal or not, and if there should be one, what its powers should be. How would anyone vote if the choice is between (a) ensuring that one's party continues to function in a way so that the chances of it remaining in power or acquiring power are maximised, and (b) taking a leap into the unknown where one doesn't know what might happen? And can the honourable members be blamed for voting to ensure their, their progeny's, and their party's future well-being? The nation's well-being is not considered to be an issue these days. This is the conflict of interest the current political and electoral system creates.

Now to the perennial favourite: State funding of elections. This paper reported on June 20 that in a draft Cabinet note, the law ministry has proposed State funding for women and schedules castes (SC) and scheduled tribes (ST) candidates.

The saga of State funding is similar to the lokpal but in the opposite direction. While the political establishment has successfully thwarted the lokpal for 42 years, it has been chasing State funding of elections for 38 years since 1972. Despite all kinds of recommendations, the spectre of financial transparency as a prerequisite somehow gets raised and enthusiasm for State funding wanes. The Cabinet note this time has taken two precautions. Following the 'thin end of the wedge' principle, it proposes State funding only for women and SC/ST candidates, and makes it part of a 'package' deal, the other part being barring candidates with criminal cases pending against them.

How would anyone vote if there were a prospect of getting free money to contest elections now, or later, once the system becomes acceptable in the public eye with women and SC/ST candidates? It is obvious that our elected representatives face severe conflicts of interest.

Is there a way out? How do we deal with such national conflicts of interests? Can we deal with them, short of expecting our elected representatives to be utter paragons of virtue, completely devoid of self-interest? Two ways seem possible.

Gopalkrishna Gandhi suggested the first on this page (A spectacular story, Incidentally, June 18) - a meeting held at Sevagram in March 1948 "between those who had entered public life through the portal of elections and those who were doing 'constructive work'." He concluded with two questions: "Is it impossible for a Sevagram 1948-type meeting to be convened by the equivalents of those who organised that meeting to discuss corruption? Is it inconceivable that they can be inspired to gather for a meeting chaired by the Congress president, inaugurated by the PM and addressed by representatives of the 'unelected' to discuss corruption?"

Sadly, saying an unqualified 'no' to these questions seems unrealistic. Other questions arise. Should such a meeting be chaired by the president of only one party? All the parties in power? At the Centre or in the states? Should this meeting be preceded by an all-party meeting? The past record of all-party meetings on issues of national interest is not very encouraging. There are no easy answers. But then, we should not expect easy answers to highly complex questions.

If the existing dispensation is unable to answer the questions adequately, do we go beyond the existing dispensation? That is what leads us to the other option. Should we - can we - seek the opinion of 'We, the People', going beyond, not above, our elected representatives? The dreaded word is 'referendum', which our Constitution does not provide for, so far. This, then, is the national dilemma. And the conflict of interest.

Jagdeep S Chhokar is former Dean, Indian Institute of Management, Ahmedabad.

The views expressed by the author are personal.

State should not fund elections

Jagdeep S Chhokar GovernanceNow | June 1-15, 2011

We are living in interesting times. “Increasing cost of elections” is a problem for everyone except those who incur that expenditure (the candidates and their sponsoring political parties), as GovernanceNow reported in the last issue; and “state funding of elections” is a solution that no one seems to want except the candidates and their sponsoring political parties! The urge for state funding seems to be so strong that no less than the law minister wrote an article in one of the leading English dailies a couple of months ago making a case for it.

As is usual in such attempts, the justification for state funding of elections began with references to the Dinesh Goswami Committee (1990) and the Indrajit Gupta Committee (1998), with both reported to have recommended providing state funding to candidates of recognised political parties. A paragraph of the Indrajit Gupta Committee report that politicians love to quote says, “The committee see full justification constitutional, legal as well as on ground of public interest, for grant of state subvention to political parties, so as to establish such conditions where even the parties with modest financial resources may be able to compete with those who have superior financial resources.” This rightly gives the impression of the well-endowed political parties being in sympathy with their less endowed brethren.

What our friends seem to overlook with unfailing regularity is the opening paragraph of the “conclusion” of the same report that says, “Before concluding, the committee cannot help expressing its considered view that its recommendations being limited in nature and confined to only one of the aspects of the electoral reforms may bring about only some cosmetic changes in the electoral sphere. What is needed, however, is an immediate overhauling of the electoral process whereby elections are freed from evil influence of all vitiating factors, particularly, criminalisation of politics. It goes without saying that money power and muscle power go together to vitiate the electoral process and it is their combined effect which is sullying the purity of electoral contests and effecting free and fair elections. Meaningful electoral reforms in other spheres of electoral activity are also urgently needed” (emphasis added).

A more succinct description of what needs to be done is difficult to find which should not be surprising since in addition to being chaired by the redoubtable Indrajit Gupta, the committee had members such as Somnath Chatterjee and Manmohan Singh.

But the report has not found favour with the larger political establishment except for being quoted selectively.

  Around the same time that the Indrajit Gupta Committee was deliberating, the Law Commission of India had suo motu undertaken a thorough review of the Representation of the People Act, 1951. The stated “underlying objective was to make the electoral process more fair, transparent and equitable. The effort was also to reduce the several distortions and evils that had crept into the Indian electoral system, to identify the areas where the legal provisions required strengthening and improvement and to suggest the requisite measures in that behalf”. The result of this review was the 170th report of the Law Commission of India titled “Reform of the Electoral Laws” which is the most comprehensive document on the subject in the country. It was submitted to the then law minister in June 1999.

One full part (Part IV) of the 208-page people politics policy performance report is devoted to “Control of Election Expenses” which contains an 11-page chapter on “State Funding”. The entire chapter should be read to get a proper understanding of the complexity of state funding. The concluding paragraph (4.3.4) is reproduced below.

“Conclusions – After considering views expressed by the participants in the seminars and by various persons and organisations in their responses and after perusing relevant literature on the subject, the Law Commission is of the opinion that in the present circumstances only partial state funding could be contemplated more as a first step towards total state funding but it is absolutely essential that before the idea of state funding (whether partial or total) is resorted to, the provisions suggested in this report relating to political parties (including the provisions ensuring internal democracy, internal structures) and maintenance of accounts, their auditing and submission to Election Commission are implemented. In other words, the implementation of the provisions recommended in Chapter one Part three should be pre-condition to the implementation of the provisions relating to partial state funding set out in the working paper in the Law Commission (partial funding, as already stated, has also been recommended by the Indrajit Gupta Committee). If without such pre-conditions, state funding, even if partial is resorted to, it would not serve the purpose underlying the idea of state funding. The idea of state funding is to eliminate the influence of money power and also to eliminate corporate funding, black money support and raising of funds in the name of elections by the parties and their leaders. The state funding, without the aforesaid pre-conditions, would merely become another source of funds for the political parties and candidates at the cost of public exchequer. We are, therefore, of the opinion that the proposals relating to state funding contained in the Indrajit Gupta Committee Report should be implemented only after or simultaneously with the implementation of the provisions contained in this Report relating to political parties, viz., deletion of Explanation 1 to section 77, maintenance of accounts and their submission etc. and the provisions governing the functioning of political parties contained in chapters I and II of Part IV and Chapter I of Part III. The state funding, even if partial, should never be resorted to unless the other provisions mentioned aforesaid are implemented lest the very idea may prove counter-productive and may defeat the every object underlying the idea of state funding of elections.” (emphasis added).

Sadly, these recommendations of the Law Commission have not been heeded and demand for state funding continues to be raised from time to time with absolutely no mention of or regard to the “pre-conditions” specified as necessary.

The Law Commission is not the only one to lay down “pre-conditions”. The National Commission to Review the Working of the Constitution, 2001, said effectively the same thing albeit using different terminology. It said, “Any system of state funding of elections bears a close nexus to the regulation of working of political parties by law and to the creation of a foolproof mechanism under law with a view to implementing the financial limits strictly. Therefore, proposal for state funding should be deferred till these regulator mechanisms are firmly in position” (emphasis added) (Para 4.14.5).

It is sometimes claimed that the Second Administrative Reforms Commission (ARC) has recommended state funding. The “recommendation” of the ARC, in para 2.1.3.1.6 of its fourth report, “Ethics in Governance” (2007), says, “a system for partial state funding should be introduced to reduce the scope of illegitimate and unnecessary funding of expenditure for elections.” Once again, this paragraph is quoted in isolation. Reading the preceding paragraph (2.1.3.1.5) is instructive. It says, “In order to eradicate the major source of political corruption, there is a compelling case for state funding of elections. As recommended by the Indrajit Gupta Committee on State Funding of Elections, the funding should be partial state funding mainly in kind for certain essential items.” It is clear that the “recommendation” of the ARC is within the ambit of the Indrajit Gupta committee report, and has to be read in the context of the opening paragraph of the “conclusion” of the Indrajit Gupta Committee report mentioned above.

The view of the Election Commission of India is clear from the interview of the chief election commissioner in the last issue of GovernanceNow.

Despite all that is mentioned above that includes views and recommendations of government and political committees, it is nothing short of amazing that the demand for state funding of elections keeps coming up with startling regularity. That state funding is no solution to any problem has been clear for a long time, and as the chief election commissioner has said in the last issue, it “will not stop illegal expenses. In fact, more money will be available to the candidates” and is, therefore, “dangerous”.

Let us, therefore, hope that we will not rush into the biggest scam by throwing thousands of crores of good public money after bad money under the garb of state funding.

Chhokar, a former dean of IIM, Ahmedabad, is a founder of Association for Democratic Reforms and National Election Watch. 

State should not fund elections

Jagdeep S Chhokar GovernanceNow | June 1-15, 2011

We are living in interesting times. “Increasing cost of elections” is a problem for

everyone except those who incur that expenditure (the candidates and their sponsoring

political parties), as GovernanceNow reported in the last issue;

and “state funding of elections” is a solution that no one seems to want except

the candidates and their sponsoring political parties! The urge for state

funding seems to be so strong that no less than the law minister wrote an

article in one of the leading English dailies a couple of months ago

making a case for it.

As is usual in such attempts, the justification for state funding of elections began

with references to the Dinesh Goswami Committee (1990) and the Indrajit Gupta

Committee (1998), with both reported to have recommended providing state funding

to candidates of recognised political parties. A paragraph of the Indrajit

Gupta Committee report that politicians love to quote says, “The committee

see full justification constitutional, legal as well as on ground of public interest,

for grant of state subvention to political parties, so as to establish such conditions

where even the parties with modest financial resources may be able to compete

with those who have superior financial resources.” This rightly gives the

impression of the well-endowed political parties being in sympathy with their

less endowed brethren.

What our friends seem to overlook with unfailing regularity is the opening paragraph

of the “conclusion” of the same report that says, “Before concluding, the

committee cannot help expressing its considered view that its recommendations

being limited in nature and confined to only one of the aspects of the electoral

reforms may bring about only some cosmetic changes in the electoral sphere.

What is needed, however, is an immediate overhauling of the electoral process

whereby elections are freed from evil influence of all vitiating factors, particularly,

criminalisation of politics. It goes without saying that money power and

muscle power go together to vitiate the electoral process and it is their combined

effect which is sullying the purity of electoral contests and effecting free and fair

elections. Meaningful electoral reforms in other spheres of electoral activity are

also urgently needed” (emphasis added).

A more succinct description of what needs to be done is difficult to find which

should not be surprising since in addition to being chaired by the redoubtable

Indrajit Gupta, the committee had members such as Somnath Chatterjee and

Manmohan Singh.

But the report has not found favour with the larger political establishment

except for being quoted selectively.

  Around the same time that the Indrajit Gupta Committee was deliberating, the

Law Commission of India had suo motu undertaken a thorough review of the

Representation of the People Act, 1951. The stated “underlying objective was to

make the electoral process more fair, transparent and equitable. The effort

was also to reduce the several distortions and evils that had crept into the Indian

electoral system, to identify the areas where the legal provisions required

strengthening and improvement and to suggest the requisite measures in that

behalf”. The result of this review was the 170th report of the Law Commission

of India titled “Reform of the Electoral Laws” which is the most comprehensive

document on the subject in the country. It was submitted to the then law minister

in June 1999.

One full part (Part IV) of the 208-page people politics policy performance

report is devoted to “Control of Election Expenses” which contains an 11-page

chapter on “State Funding”. The entire chapter should be read to get a proper

understanding of the complexity of state funding. The concluding paragraph

(4.3.4) is reproduced below.

“Conclusions – After considering views expressed by the participants in the seminars

and by various persons and organisations in their responses and after perusing

relevant literature on the subject, the Law Commission is of the opinion

that in the present circumstances only partial state funding could be contemplated

more as a first step towards total state funding but it is absolutely essential

that before the idea of state funding (whether partial or total) is resorted to,

the provisions suggested in this report relating to political parties (including the

provisions ensuring internal democracy, internal structures) and maintenance of

accounts, their auditing and submission to Election Commission are implemented.

In other words, the implementation of the provisions recommended in Chapter

one Part three should be pre-condition to the implementation of the provisions

relating to partial state funding set out in the working paper in the Law Commission

(partial funding, as already stated, has also been recommended by the Indrajit Gupta

Committee). If without such pre-conditions, state funding, even if partial is resorted to,

it would not serve the purpose underlying the idea of state funding. The idea of state

funding is to eliminate the influence of money power and also to eliminate corporate funding,

black money support and raising of funds in the name of elections by the parties

and their leaders. The state funding, without the aforesaid pre-conditions, would merely

become another source of funds for the political parties and candidates at the cost

of public exchequer. We are, therefore, of the opinion that the proposals relating

to state funding contained in the Indrajit Gupta Committee Report should be implemented

only after or simultaneously with the implementation of the provisions contained

in this Report relating to political parties, viz., deletion of Explanation 1 to section 77,

maintenance of accounts and their submission etc. and the provisions governing the

functioning of political parties contained in chapters I and II of Part IV and Chapter I

of Part III. The state funding, even if partial, should never be resorted to unless the other

provisions mentioned aforesaid are implemented lest the very idea may prove counter-productive

and may defeat the every object underlying the idea of state funding of elections.”

(emphasis added).

Sadly, these recommendations of the Law Commission have not been heeded and demand for

state funding continues to be raised from time to time with absolutely no mention of or

regard to the “pre-conditions” specified as necessary.

The Law Commission is not the only one to lay down “pre-conditions”. The National

Commission to Review the Working of the Constitution, 2001, said effectively the same

thing albeit using different terminology. It said, “Any system of state funding of elections

bears a close nexus to the regulation of working of political parties by law and to the

creation of a foolproof mechanism under law with a view to implementing the financial limits

strictly. Therefore, proposal for state funding should be deferred till these

regulator mechanisms are firmly in position” (emphasis added) (Para 4.14.5).

It is sometimes claimed that the Second Administrative Reforms Commission (ARC) has

recommended state funding. The “recommendation” of the ARC, in para 2.1.3.1.6 of its

fourth report, “Ethics in Governance” (2007), says, “a system for partial state funding

should be introduced to reduce the scope of illegitimate and unnecessary funding of

expenditure for elections.” Once again, this paragraph is quoted in isolation. Reading

the preceding paragraph (2.1.3.1.5) is instructive. It says, “In order to eradicate

the major source of political corruption, there is a compelling case for state

funding of elections. As recommended by the Indrajit Gupta Committee on State

Funding of Elections, the funding should be partial state funding mainly in kind

for certain essential items.” It is clear that the “recommendation” of the ARC

is within the ambit of the Indrajit Gupta committee report, and has to be read in

the context of the opening paragraph of the “conclusion” of the Indrajit Gupta

Committee report mentioned above.

The view of the Election Commission of India is clear from the interview of the

chief election commissioner in the last issue of GovernanceNow.

Despite all that is mentioned above that includes views and recommendations of government

and political committees, it is nothing short of amazing that the demand for state funding

of elections keeps coming up with startling regularity. That state funding is no solution

to any problem has been clear for a long time, and as the chief election commissioner has

said in the last issue, it “will not stop illegal expenses. In fact, more money will be

available to the candidates” and is, therefore, “dangerous”.

Let us, therefore, hope that we will not rush into the biggest scam by throwing thousands

of crores of good public money after bad money under the garb of state funding. 

Chhokar, a former dean of IIM, Ahmedabad, is a founder of Association for Democratic Reforms and National Election Watch. 

Who is afraid of the Lokpal Bill

Hindustan Times

Jagdeep S Chhokar

June 02, 2011

Who’s afraid of the Lokpal Bill?

The proposed Jan Lokpal Bill has evoked strong reactions, a number of them emotionally charged. One is struck by the conflicting claims and counter-claims in the media. While it’s hard to determine the truth in such matters, a summary of some of the misgivings and the possible intentions, with an assessment of what possibly is the reality, follows:

*The Lokpal is being dubbed as a Leviathan

Fear: Being a much too powerful agency, it is being projected to be a threat to democracy. It is being said that it should not have powers of search, summons, phone tapping, contempt of court, etc.

Reality: The existing law enforcement and investigative agencies such as the Enforcement Directorate, the Central Bureau of Investigation and the Income Tax Department enjoy all these powers. No new powers have been suggested for the Lokpal. But the corrupt will be all too happy with a weak Lokpal. So the Lokpal must be strong but with adequate checks and balances.

*Is the jurisdiction of the Lokpal too large?

Fear: The jurisdiction of the Lokpal proposed in the bill is vast. It should be curtailed to only politicians.

Reality: The nexus between the political executive and the bureaucracy is well known. No politician can indulge in corrupt acts without active connivance of bureaucrats and vice versa. Trying to curb corrupt acts of only one kind of actors is ineffective and inefficient. This model has been in existence in several states for lokayuktas and has completely failed.

Almost no corruption starts at the level of a politician. It normally starts with a bureaucrat who writes something on the file, maybe under pressure. The politician’s role becomes visible after many levels. This is why almost no case reaches the lokayuktas.

The Delhi Lokayukta has jurisdiction only over politicians. Justice Mohammad Shamim, former Delhi Lokayukta, had complained that though the government spent almost R1.25 crore on his institution annually, he received less than five actionable complaints every year. The Karnataka Lokayukta, with jurisdiction over both politicians and bureaucrats, works very well.

The annual conference of all lokayuktas has been consistently demanding that this fractured mandate given to them covering only politicians was serving the interests of only the corrupt and should be expanded to cover bureaucrats, thus replicating the Karnataka model in every state.

*Should the Lokpal deal with judicial corruption?

Fear: This will endanger independence of the judiciary.

Reality: Under the present system, one has to obtain permission from the Chief Justice of India to file a first information report (FIR) against any judge. In the last 20 years, such permission was granted in just one case despite innumerable cases of blatant corruption by judges exposed in the public domain.

This system has encouraged corruption in the judiciary. The Jan Lokpal Bill only provides that a seven-member bench of Lokpal should grant such permission in open hearings. The present system, which protects corrupt judges, is seriously compromising the independence of the judiciary.

*There are no mechanisms to deal with corruption within the institution of Lokpal.

Fear: What’s the guarantee the Lokpal won’t turn corrupt?

Reality: Some of the proposals to check corruption within the Lokpal include the annual financial and performance audit of the Lokpal by the comptroller and auditor general of India, the annual appraisal of the Lokpal by the relevant parliamentary committee, the setting up of complaints authorities in each state that also involve people from civil society, open hearings by the complaints authority, internal transparency in the functioning of the Lokpal, regular social audits of various levels of the Lokpal, complaints against members of the Lokpal to be made directly to the Supreme Court.

More checks and balances can and need to be thought of.

*The Lokpal will suffer in no time from overload

Fear: Given the widespread prevalence of corruption in the country, the Lokpal will be swamped with and paralysed by the sheer number of complaints. It should, therefore, deal with corruption only at higher levels.

Reality: Members and the chairperson of the Lokpal are not envisaged as a set of investigators who would be able to handle only a limited number of cases. What possibly is intended is an anti-corruption system capable of enforcing the Prevention of Corruption Act. Lokpal members will not directly deal with any case.

There will be a set-up under them that will deal with the cases. They may have a certain number of special investigative units directly under their control to deal with high profile cases. But the rest of the machinery will receive and investigate smaller cases.

After developing cold feet and agreeing to demands that were fundamentally unpalatable to them, the politician-bureaucrat-business nexus has regrouped and has been looking to discredit the entire anti-corruption effort. This was first attempted by some crude allegations aimed at what were considered to be vulnerable individuals.

When that did not get much traction, seemingly ideological opposition was raked up. Two major principles in use seem to be ‘divide and rule’ and ‘delay is the most effective form of denial’.

The Jan Lokpal Bill, if it comes into force, will not eradicate corruption or its root causes from society. Only large-scale social change impacting basic values of society can do that.

The Jan Lokpal can only put obstacles in the path of — and fear of the law into the minds of — the potentially corrupt. It is not a panacea for all of India’s social ills. Nothing can be. But it certainly is a good and necessary step in a long journey.

(Jagdeep S Chhokar is a former professor, dean and director in-charge of the Indian Institute of Management, Ahmedabad. The views expressed by the author are personal)

http://www.hindustantimes.com/StoryPage/Print/704601.aspx

© Copyright 2010 Hindustan Times

Jan Lokpal-Changing the power structure

The Tribune, May 28, 2011

OP-ED GOVERNANCE

Jan Lokpal: Changing the power structure

The Lokpal Bill is a small step in the shift of a bit of power from the political class, supported by bureaucracy and business, in favour of the people. Such shifts are necessary from time to time in a dynamic society to correct imbalances that creep in over time

Jagdeep S. Chhokar

http://www.tribuneindia.com/2011/20110528/edit.htm#6

THE last time a corruption tsunami hit the country, it ended up with two significant changes. The time was the late 1980s, the trigger was Bofors. The changes were a move towards a federal polity from the unitary one prevalent since Independence, and the start of a change in the overall power structure in society, with the subaltern classes realising the strength of their numbers.

While the current “Bofors” are the Commonwealth Games, 2-G, mining, and the like, what changes will this current tsunami bring forth is not clear. Not being blessed with clairvoyance, one can only look at the game as it is being played and try to look for straws in the wind.

While the real changes will take time manifesting themselves, the current visible face of the saagar-manthan appears to be the Lokpal Bill. It is of course not clear whether, finally, the jinx of 42 years will be broken and there will be a Lokpal, and in what form, but the societal dynamics of power are fascinating.

Continuing the practice started with the fourth Lok Sabha in 1969 and another six attempts, the government innocently prepared yet another draft of the Lokpal Bill in October 2010. This is what seems to have now acquired a life of its own, inviting sobriquets such as “monster”, “Leviathan”, “beacon of hope”. Why is it causing such extreme reactions?

Assume that a potentially effective Lokpal Bill gets passed and is also implemented in the right spirit, who will get affected, and how? Those who benefit from corruption are likely to face a cut to their monetary inflows, and those who have to pay to get their legitimate dues are likely to gain. Admittedly, this is a simplistic formulation but will do, given the space constraints.

Again, who benefits from corruption the most? The proverbial common citizens who pay bribes benefit by getting their job done, but the one who gets the bribe to do the job benefits more. Who are these beneficiaries?

The nexus of the political class, bureaucracy and business is too well known to need explanation. Liberalisation has not broken this nexus but has only changed some of the dramatis personae. The avalanche of opposition to the Jan Lokpal Bill leaves no room for doubt that the opposition is intense and organised. All forms of the traditional saam, daam, dand, bhed are being used to discredit the whole attempt and the very idea that any one other than these three sectors of society can even think of having a say in the law-making process.

The politicians, being the kingpin of this nexus, possibly have the most to lose. Actually all the Jan Lokpal movement has done so far is to create a mere whiff in the minds of politicians that it just might be possible for someone to challenge their completely unfettered hegemony over matters of the state for the period between two elections. This mere whiff seems to have unsettled the political class so much that all manner of stratagems are being used to nip this audacity of common folk in the bud.

And what of these common folk? Their tragedy is that they need someone to “represent” them, as 1.2 billion people seemingly cannot express themselves except through their representatives. The actual representativeness of the elected representative is in some doubt despite the euphoria at the outcome of the recent state assembly elections. The other claimant to representing the common folk is what used to be called the “civil society”, which now, in some people’s lexicon, has become a bad word.

Who, or what, is this “civil society”? Without going into an academic discourse, these are supposed to be people who do things for general, public good without the expectation of a tangible payoff, in contrast to those who get some return from doing public good, such as salary for bureaucrats, exercise of state power for politicians. It is a large, diverse, and complex mass of people, usually self-proclaimed do-gooders.

While doing selfless service, they are not free from usual human weaknesses, and therefore amenable to manipulation by those who have high stakes. How, and by what means is manipulation done depends on who is to be manipulated. In true Chanakyasque style, our politicians have mastered this art. Two well known techniques being “divide and rule”, and a law often attributed to Parkinson, “Delay is the deadliest form of denial.”

The political class seems to have succeeded in convincing some significant parts of civil society that the Lokpal Bill being an extremely important piece of legislation, needs to be discussed in every district, taluka, block headquarters before it can be considered seriously, the real agenda of course being to delay the process so that the commitments made to get the Jantar Mantar fast broken can be progressively diluted ad infinitum.

What needs to be remembered is that this bill is a small step in the shift of a bit of power from the political class supported by the bureaucracy and the business, in favour of the people. Such shifts are necessary from time to time in a dynamic society to correct imbalances that creep in over time. The side that stands to lose even a bit of its power is bound to resist. It is for the countervailing forces to keep themselves together if any shift, however small, is to take place.

The game is on, let’s keep watching.

The writer is a former professor, Dean, and Director In-charge of the Indian Institute of Management, Ahmedabad.

Vote for positive change

Vote for positive change

Jagdeep S Chhokar

GovernanceNow, May 16-31, 2011, p.31

The interim success of the movement for Jan Lokpal Bill, led by Anna Hazare, and the almost raging debate on corruption, have once again brought focus on the issue of wide-ranging reforms. Before going on to discuss some of what has been called a slew or a basket of reforms, it is important to underline that the current events seem to have brought the Indian society and

polity at a critical juncture where far-reaching changes in the way we govern ourselves seem to be a possibility within reach. It is possibly the first time in independent India that the political establishment seems to feel a threat to its hegemony.

While the necessity, criticality and contribution of the political establishment in a representative democracy is a given and must be recognized and respected, its blatant functioning for its own benefit, seemingly at the cost of the nation and its people, is not healthy and points to the need for course correction. The Jan Lokpal Bill is one such correction whose time seems to have come after a 42-year wait and this opportunity of moving the balance of power in favour of the so-called non-ruling class must not be lost.

Among the other reforms that have been mentioned, not only by the media in general but also by some of those intimately involved with the Jan Lokpal Bill, are electoral reforms. It has been

said that while the Lokpal Bill is an attempt to catch and punish those who engage in corruption, electoral reforms may be able to prevent those susceptible or prone to corruption from getting into positions where they can indulge in it. But what do electoral reforms entail? Is it only getting a button on the EVM that says “None of the above”, and/or getting the “Right to recall”?

Elections are usually thought of as a periodic affairs, originally on a five-year cycle, when “We, the people” choose who will govern us for the next five years. As a TV spot featuring Aamir Khan says, we often spend more time choosing which vegetables to buy than in deciding whom to vote for. Whether that is realistic or not, it seems to be true that most of us don’t spend much time thinking about what goes on behind our casting of our vote. While the election commission of

India is the best source of this information, here is what possibly is an incomplete listing of what the electoral process includes.

It starts with the basic issue of “Who can vote?” While the parliament decides what the voting age should be, the responsibility of registering voters rests with the Election Commission (EC). The next basic issue is: “Who can contest?” Once again, the law is made by the parliament

but its implementation rests with the EC whose officials (whether permanent or on deputation) accept or reject nomination papers. In between these two, there is a plethora of actions that have to be taken. How will the winner be decided? We follow the “first-past-the-post” system that we

borrowed from the British, who themselves recently held a referendum about its continuation. Is the current system appropriate for us or should we change? If we do want to change, which of the 272 systems that the Law Commission of India tells us exist in the world, should we choose?

Which political parties are to be recognised and are eligible to put up candidates on their behalf? How much money can a candidate spend on the election campaign? How can, and should, the expenditure be monitored? How many polling booths should there be and where should they be located? How many and who should be the polling agents, and election observers?

While the constitution lays down the life of the legislatures, it also provides for a window of time during which the elections must be held. Decisions about exactly when to hold elections also have

to be made. Of course, Article 324 (1) of the constitution vests “the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to parliament and to the legislature of every state and of elections to the offices of president and vice-president held under this constitution” with the election commission.

While this is what is called “plenary” power, which the dictionary describes, as “full; complete; entire; absolute; unqualified”, it still has to be exercised within the limits laid down in the constitution and as interpreted by the supreme court.

It is in this background that we are embarking on a series on electoral reforms. Each of the next few issues will carry a fairly in-depth piece on an important aspect of electoral reforms. This week, we look at the rising expenditure on holding elections and the ways to curb this escalating

cost.

Chhokar, a former dean of IIM, Ahmedabad, is a founder of Association for Democratic

Reforms and National Election Watch.

For the best possible democracy: Electoral reform consultations

For the best possible democracy

Jagdeep S Chhokar

GovernanceNow | March 1-15, 2011, pp. 32-33

The law minister and the chief election commissioner announced a major initiative on electoral reforms on December 9. They announced that seven regional and one national consultation would be held over the next couple of months with political parties, NGOs and other stakeholders for a comprehensive overhaul of the electoral laws. It was indicated that the proposals would be ready for initiating action within six months of the national consultation

in New Delhi on April 2-3, 2011.

Our electoral laws were made almost 60 years ago, during idealistic times in the afterglow of independence. While there has been no shortage of ideas and recommendations (see list below for the list of reports) and there have been piecemeal amendments from time to time, the laws, as a body, are almost completely out of tune with current ground realities. The initiative to collect views from across the country in order to make comprehensive reforms is thus very

welcome.

Elec toral reforms: the

reports so far

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1. The Second Administrative Reforms Commission (2008)

2. Election Commission of India – Proposed Electoral Reforms (2004)

3. National Commission to review the Working of the Constitution (2001)

4. Law Commission Report on Reform of the Electoral Laws (1999)

5. Indrajit Gupta Committee on State Funding of Election (1998)

6. Vohra Committee Report (1993)

7. Goswami Committee on Electoral Reforms (1990)

-----------------------------------------------------

The whole effort can be looked at from two perspectives: content and process. One way of getting at the content is obviously to study all the existing recommendations and the amendments and their rationale, see how they match up with existing realities and how things are likely to evolve in the years to come, and then develop the proposals for change. This can be improved by consultations with a wide cross-section of people. This is precisely what the law ministry and the election commission set out to do with the seven regional and one national consultation, and that is what raised high hopes.

There have been five consultations so far, at Bhopal, Kolkata, Mumbai, Lucknow, and Chandigarh, but the process followed during the consultations, sadly, does not inspire much confidence. The first consultation in Bhopal seemed limited to politicians and bureaucrats making

speeches. Based on feedback given after Bhopal, the format at Kolkata was revised to include parallel panel discussions. The same format has been followed at Mumbai, Lucknow, and Chandigarh.

The Chandigarh consultation

The consultation at Chandigarh was scheduled for February 5, at the Judicial Academy, consisting of three sessions: inaugural session (10 am to 12 noon), three parallel panel sessions (12 noon to 1.30 pm), and the valedictory session (1.35 pm to 2.15 pm). What actually happened is revealing. The inaugural session started with a ‘welcome address’ by the registrar of the

National Law University, Patiala, followed by an ‘introduction on (sic) electoral reforms’ by Vivek Tankha, additional solicitor general of India, and the chairman of the core committee on electoral reforms constituted by the law ministry. ‘Thoughts on electoral reforms’ by Bhupinder

Singh Hooda, chief minister of Haryana, followed. Next was a talk on ‘the need for electoral reforms in India’ by S Y Quraishi, chief election commissioner. Then there were ‘thoughts on electoral reforms’ by Manish Tewari, Salman Khurshid and Pawan Bansal, followed by ‘agenda for electoral reforms’ by M Veerappa Moily, law minister. Following this, the governor of Punjab, Shivraj Patil, delivered the ‘inaugural address’, followed by the ‘vote of thanks’ by Mohan Jain, additional solicitor general.

What is important to note is that the session started at 10 am and lasted till 1.30 pm. The parallel ‘panel sessions’ were officially and technically reduced from 90 minutes (12 noon to 1.30 pm) to one hour (1.30-2.30) but actually lasted only 45 minutes (starting at 1.45 pm and finishing at 2.30 pm). Two panel sessions had six listed panelists each, and the third had seven. In the panel session that I attended, the panelists spoke for barely five minutes each, that too with the chairperson almost constantly exhorting them to be brief, and two other participants

got to speak for about a couple of minutes each.

The panel sessions were to be followed by the valedictory session, which was supposed to comprise of six items, each of five minutes. These, as listed, were (i) opening remarks, (ii) I panel chairperson’s presentation, (iii) II panel chairperson’s presentation, (iv) III panel chairperson’s

presentation (v) address by chief election commissioner, and (vi) reflections by M Veerappa Moily, union minister for law and justice. This was to be followed by a 10-minute “prize distribution for the best research papers,” ending the programme at 2.15 pm.

When the panel session participants reached the venue of the valedictory session, around 2.30 pm, Pawan Bansal was giving prizes to the students and there was hardly anyone else around. Most people had moved on to lunch. The first three rows in the Judicial Academy auditorium were reserved for ‘VVIPs’, next two for ‘advocates’, the next two for ‘judicial officers’, and one after that for ‘press’. The remaining seemed occupied by a lot of young people in formal

attire who seemed to be students. Of the 19 panelists listed for the three panel sessions, there were five politicians, five academics (three of whom were professors of law), four from the media, three advocates, and two bureaucrats (one retired IPS officer and one serving IAS officer). The three professors of law and three advocates, taken together, make six legal

professionals out of the total 19 panelists.

Reflections

The process followed for the five consultations conducted so far certainly seems to have involved local political figures, including chief ministers. For example, in Bhopal, Madhya Pradesh chief minister Shivraj Singh Chouhan’s remarks that the Rajya Sabha should be closed down, as its

memberships were being freely bought and sold at the time of elections, were a major news story. Similarly, at Lucknow, the media reported that it was the first non-BSP event attended by Mayawati after becoming chief minister. However, the event at Chandigarh seemed to be

meant almost exclusively for the Congress. In addition to the speakers mentioned above, Rajinder Kaur Bhattal and Vidya Stokes were also on the main dais though they did not speak. There were some representatives of the BJP, INLD, and NCP among the panelists but the Akalis

were conspicuous by their absence.

All the five consultations held so far seem to have been dominated by the legal fraternity. This is also indicated by the composition of nine-member ‘core committee’ constituted by the law ministry “to work as a nodal committee for electoral reforms”. The committee consisted of three additional solicitor generals, one legal scholar, one advocate, one additional secretary to the government of India (law ministry), one joint secretary and legislative council, one person from a civil society organisation, and four research fellows. As a natural corollary to this composition, the consultation in Mumbai was held in and organised by the law department of Bombay University, and the one in Chandigarh was held at the Judicial Academy.

It is of course true that any significant change in the electoral process would necessarily require fresh legislation but the assumption that only politician, legal experts and bureaucrats will be able to put together the most appropriate legislation is not correct. There are a lot of other people in the population, and not limited to organised civil society groups, who have experience and knowledge of the electoral process and may be able to contribute meaningfully to the ongoing exercise. A couple of examples of potentially significant contributors come to mind. One

is the former supreme court judge and the former chairman of the law commission of India, Justice B P Jeevan Reddy, under whose stewardship the 170th report of the law commission of India on electoral reforms was prepared. Though it was written in 1999 and therefore may

require some updating in view of the changes in the situation on the ground, it remains, by far, the most comprehensive document on the subject in the country. The others are the former chief election commissioners, J M Lyngdoh and N Gopalaswami.

The other concern is the lack of general awareness about this exercise. At Lucknow, two days before the proposed consultation, a large section of the media did not seem aware of what was planned. The situation in Chandigarh was different, as the media seemed fully aware. It is difficult to say if that was the result of the high “power” speakers or otherwise. Following

the media reports, one is struck about the lack of “buzz” about this extremely significant

exercise in the country.

Reforming the electoral process in the country is actually the most important activity in the governance of the nation since the making of the constitution, as the chief election commissioner, S Y Quraishi has often said. This indeed is true and the electoral process is the backbone of the

functioning of our democracy. For democracy to bear its just fruits, it is necessary for the electoral process to be effective and efficient, and to cover the entire political spectrum, including the functioning of political parties. It is hoped the process will be recalibrated to ensure that the

outcome is the best possible for the future of democracy in the country.

Chhokar is a former professor, dean and director-in-charge of Indian Institute of Management, Ahmedabad, and a founding member of Association for Democratic Reforms (www.adrindia.org) and National Election Watch.